The Borden Co.

National Labor Relations Board - Board Decisions

Jul 28, 1962

137 N.L.R.B. 1618 (N.L.R.B. 1962)

1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Borden Company and International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America,
Truck Drivers, Chauffeurs , Warehousemen & Helpers, Local
941. Cases Nos. 28-C.4-716, 28-CA-744, and 28-RC-876. July
23, 1962
DECISION, ORDER, AND SECOND DIRECTION
OF ELECTION
On April 27, 1962, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. In addition the Trial Examiner found merit in
objections Nos. 1, 3, and 7 filed by the Union to conduct of the
Respondent in connection with the August 24, 1961, election, and
recommended that the results be set aside as set forth in the attached
Intermediate Report. Thereafter the Respondent filed exceptions to
the Intermediate Report and a supporting brief, and the General
Counsel filed exceptioii. .
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this proceeding to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and Recommended
Order of the Trial. Examiner except with respect to objection No. 1.1
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
[Text of Second Direction of Election omitted from publication.]
1 The Board finds it unnecessary to pass upon the conduct alleged in connection with
objection No. 1 to conduct of the election , inasmuch as the conduct found objectionable
under objections Nos. 3 and 7 Is ground for setting aside the election
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter came on to be heard before Trial Examiner Wallace E. Royster in
El Paso, Texas , on January 11 and 12, 1962 . The complaint of the General Counsel
of the National Labor Relations Board issued November 2, 1961, upon charges by
International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
137 NLRB No. 175.
THE BORDEN COMPANY 1619
of America, Truck Drivers, Chauffeurs , Warehousemen & Helpers, Local 941, herein
called the Union , filed July . 12 and September 14, 1961 , alleges that The Borden
Company, El Paso, Texas , herein called the Respondent or Borden , has by unlawful
interrogations , promises , and threats and by the discriminatory discharge of Ceferino
Anchondo , committed unfair labor practices within the meaning of Section 8 ( a) (1),
(3), and (4) and Section 2(6) and (7) of the National Labor Relations Act, as
amended , herein called the Act.
Pursuant to Board order , evidence was also taken at the hearing in connection
with certain objections filed by the Union in respect to an election conducted by
agents of the Board among Respondent 's employees on August 24, 1961
All parties were represented at the hearing and all have filed briefs Upon con-
sideration of the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a New Jersey corporation with a place of business in El Paso,
Texas, where it is engaged in the processing of milk, milk products , and ice cream,
and the wholesale and retail distribution of its production . The Respondent is a
multistate operation with numerous plants throughout the United States. At El Paso,
presumably in the last year, the Respondent received milk, milk products , and other
goods and materials valued in excess of $50,000 from States other than the State
of Texas. In the same period the Respondent 's production at El Paso exceeded
$500,000 in value of which more than $50,000 in value was shipped from El Paso
to points outside the State of Texas. I find that the operations of the Respondent
at El Paso are in and affect commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act
and has sought to be selected as bargaining representative of Respondent 's employees.
III. THE UNFAIR LABOR PRACTICES
In late 1960, Amalgamated Meat Cutters and Butcher Workmen of North
America, Local No. 606 , AFL-CIO, herein called the Meat Cutters , made some effort
to obtain members among Respondent 's employees . In late 1960 , the Meat Cutters
filed a petition for an election which was later withdrawn . In early 1961, the
Union began its campaign . Among those active in behalf of the Union was Ceferino
Anchondo who signed a union authorization card on February 4, 1961. A month
before :that„ Dewey Hiatt ,,,Respondent 's retail sales manager, supplied ^ Anchondo
with an article exposing corruption in unions . Hiatt then questioned . Anchondo
about the organizing efforts of the Meat Cutters. Anchondo said that he knew
nothing of this campaign . Hiatt told Anchondo that he would appreciate it if
Anchondo would inform him concerning the participants in the Meat Cutters'
campaign and the methods used . In early March, Anchondo , in company with
Roger Wallace , a union representative , was seen by a Borden employee near the plant.
The next day Hiatt asked Anchondo what was going on between him and the Union.
Anchondo denied that there was any connection between the Union and him,
Hiatt said that he "felt pretty bad"; that he had hired Anchondo in the knowledge
that Anchondo's father was very active in labor organizations.
Anchondo for the year of his employment with the Respondent was a retail sales
driver . Except for the circumstance about to be related there is no suggestion that
his work was , not in all respects satisfactory. On May 19, Anchondo finished his
route about 1 p.m., and, leaving his truck at Respondent 's premises , went to a
Board hearing on a representation petition filed by the Union He,there gave testi-
mony as a witness called by the Union . At the close of his day 's work on May 19,
Anchondo had failed to extend in his customer account book all of the entries
required by deliveries that day. As a result , one looking at his book would have to
multiply the units delivered to any particular customer by the price, add this to
the previous balance, and extend it in order to know the amount of the customer's
debt. All retail sales employees were under instruction to make the extensions daily.
On Tuesday , May 23. Anchondo was given a letter over the signature of
I W. Myers, Respondent 's general manager, calling his attention to the failure to
bring balances forward in respect to May 19 deliveries and warning that in the
future "failure to comply with rules and regulations will be grounds for dismissal."
At the time of his hire in June 1960, Anchondo exhibited his driver 's license to
the Respondent and the number was taken so that his record of traffic violations
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
might be obtained . About a month later , Charles Lee, one of Respondent's em-
ployees, took the number for the same purpose . On May 25, 1961 , a request from
the Respondent for Anchondo's traffic violation record was received by the Texas
Department of Public Safety in Austin. Shortly thereafter this record was supplied
to the Respondent in El Paso , and Anchondo was discharged . On the occasion
of the discharge, Anchondo was given a letter over the signature of Manager Myers,
reading:
Because it has been reported by the Texas State Department of Public Safety
that you have had so many traffic violations in the past , it becomes necessary
for us to relieve you of your duties as route driver.
We cannot afford the risks incident to accidents that occur when traffic rules
are violated.
We regret that this has to take place, but we have no other alternative.
Enclosed please find a check for two weeks' severance pay.
Anchondo has not since been employed by the Respondent.
The complaint alleges and the General Counsel contends that Anchondo was
criticized on May 23 not because he had failed to show current balances in his
account book, and that he was discharged on June 2 not because of his traffic
violation record, but that both the criticism and the discharge were motivated by
the Respondent 's awareness that Anchondo was active in promoting the interests
of the Union, and in order to discourage membership and activity in behalf of the
Union. Evidence will be recited and considered which bears upon this contention.
At the outset, the status of three employees whom the General Counsel asserts
are supervisors must be considered. The Respondent has 15 retail routes each of
which is handled by an employee doing the same work as Anchondo performed.
In addition to the 15 drivers, Charles Lee, Daniel Duarte, and Bill Russ substitute
for absent drivers and assist drivers in promoting sales and collecting accounts. The
General Counsel asserts that these three are supervisors. The Respondent denies
that this is so. Dewey Hiatt, described in his testimony as supervisor of the retail
milk department, came to the El Paso plant in March 1960. He testified that when
he assumed his duties in El Paso, that Lee, Duarte, and another employee, who
subsequently was replaced by Russ, were called supervisors and had supervisory au-
thority. Dissatisfied with this arrangement, Hiatt testified, he took all supervision
into his own hands and withdrew supervisory authority from them in February or
March 1961. There is no evidence that the route drivers were ever told of this
change in status. For a number of years these three employees, whom I will here-
after refer to as route supervisors, had the word "Supervisor" embroidered on their
uniform shirts. Anchondo testified that this practice persisted throughout his em-
ployment; Hiatt said that the uniforms were changed in the spring of 1961 and that
the word "Supervisor" did not appear on the new uniforms. Hiatt was unsure of his
dates in this particular and I accept as accurate the positive recollection of Anchondo.
Another employee, Lewis Brewster, testified that the word was embroidered upon the
shirt of at least one route supervisor and that he observed this "Before the election."
How long before that event is left unclear. Routeman Larry Purvis testified that no
more than 2 weeks before the August 24 election his route supervisor wore such
a shirt. So it is clear that at least until sometime in the early months of 1961 the
route supervisors were what the title implies and, as such, were to the route drivers
their immediate superiors. Other than the testimony of Hiatt that such authority
was withdrawn from them, there is no evidence that their status was changed. The
route supervisors, as before, assist the drivers in collections and sales, substitute for
absent drivers, and are still regarded by the drivers as their supervisors. Anchondo
testified that for the period of his employment he took his orders directly from his
supervisor, Charles Lee, and that when he applied for employment in 1960, Lee
recommended his hire. Hiatt testified that since some date in early 1961 the
route supervisors had no authority to make recommendations which he felt obliged
to follow. Certainly the route supervisors were at no time very high in Respondent's
hierarchy. There is no evidence that they ever possessed authority to hire and fire.
Nonetheless they provided the immediate link between the drivers and the Respondent.
Their orders and directions had behind them Respondent's authority, and the drivers
necessarily regarded them as men in a position to voice the Respondent's policy.
I find that the route supervisors were held out to the drivers as representatives of
management. The Respondent until this hearing has not disassociated itself from
their words and actions in that capacity.
The December petition of the Meat Cutters was withdrawn in the early spring.
Thereafter the Union filed its petition which resulted in an election on August 24.
Thus for a period of about 8 months the Respondent was aware that first the Meat
Cutters and then the Union was seeking to establish itself as the employees' bargain-
ing representative.
THE BORDEN COMPANY 1621
This was a development that the Respondent did not view with favor . Sometime
in the spring of 1961, General Manager Myers encountered Routeman Larry Purvis
as the latter was servicing his route . Mentioning the Union , Myers said that he
thought that it would be defeated and hoped that the defeat would be decisive.
Purvis testified that on this occasion Myers asked him if Purvis would support the
Respondent or the Union. Purvis answered that he would stay with the Respondent.
Myers did not specifically deny questioning Purvis on this occasion but testified that
he asked Purvis if any union organizer had been "bothering" him. Purvis answered
that they had not. On the day of the election, still according to Purvis, his route
supervisor, Russ, asked him how he intended to vote. A day or two before the
election Russ instructed Purvis to attend a meeting of employees at the plant. Purvis
recalled little of the meeting except that S. W. Broiles, Respondent's sales manager,
presided and that Broiles told the employees that the Respondent wanted all of those
eligible to do so to vote. Assuring them that their vote would not affect their em-
ployment, Broiles said that they all knew how he felt; that he opposed the Union.
Russ did not testify. Purvis was discharged as a route driver when his driver's
license was suspended in early November 1961. Myers shortly thereafter gave him
other employment in the plant There is little to suggest that Purvis is in any respect
unfriendly to the Respondent and the circumstances of his discharge and reemploy-
ment are such that he may feel grateful that his employment was continued even
though with slightly lessened earnings. In short, I believe his testimony. I find
that Myers questioned him about whether he would be on the side of the Union or
of the Respondent and that Russ inquired concerning how he would cast his vote
in the election.
Richard Brewster, an employee in the ice cream plant, testified that his superintend-
ent, Charles Sain, asked him in March to estimate what percentage of the employees
wanted a union . Brewster answered that about half of them did. In the same
month, still according to Brewster, Sain asked if he had attended union meetings
Three or four days before the election, Brewster testified, Sain said that he opposed
the Union and asked how Brewster intended to vote. Sain was not questioned about
these conversations but denied that he broached the subject of the Union to em-
ployees and testified that in general, at least, it was the employees who brought up the
subject of the Union. In the course of such discussions, Sain testified, he may well
have asked Brewster or another employee how he felt about the Union.
Robert Brewster, Richard's brother and employed in the same department with
him, testified that he too was questioned by Sain in March about the Union. On
this occasion, according to Brewster, Sain asked if he had attended a union meeting.
Brewster said that he had. On another occasion Sain asked Brewster how he felt
about the Union. Sain testified that he remembered only one conversation with
Robert Brewster and that it was opened by Brewster asking Sain what he thought
about the Union. Sain answered that he opposed it and then asked Brewster how
he felt about it. Brewster either gave a noncommittal answer or avoided reply
On May 20, Ceferino Anchondo testified, his route supervisor, Charles Lee, told
him that the three route supervisors had on the previous day been called to a "special
meeting" by Manager Myers and were there told that because the supervisors had
not been "rough and tough" enough with the routemen the drivers had gone to the
Union for help.
Alisa Macias, who, until she quit in June, had been Respondent's employee for 9
years, worked in the ice cream department under Sain. In 1959 Macias was trained
to do some work in the laboratory and thereafter spent a portion of her workday in
that occupation. Macias preferred the laboratory work over her former full-time
job of packing ice cream. In April, she testified, she was called to Sain's office
There Sain told her that there were rumors afloat concerning a union and asked
her what she thought about it. Macias replied that she liked the idea of having
a union because there were some things in the plant which she thought needed
correction. Sometime later Sain took her to the office of Manager Myers. There
Myers asked her if she wanted a union and when Macias answered that she did,
asked her why. Macias said that she had some complaints (not specified in her
testimony) and Myers asked if she "trusted others better than the Company." Sain
said that a union would not permit Macias to work in the laboratory as she had
been doing. A few weeks later when delivering a laboratory report to him, Myers
asked her if she was still in favor of the Union. Macias answered that she was.
Myers asked if she did not fear that he would find an excuse to fire her and if she
was indifferent about her "brilliant future" in the laboratory. In June, Macias was
transferred to a night shift and quit because of the lack of safe transportation to
her home in the night hours. I have no doubt that she quit with reluctance and
that she feels that the Respondent did not act considerately in making the transfer.
1622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As in respect to the Brewsters , Sain testified to the effect that there was an easy
and friendly relationship between him and Macias . Thus it was natural that in the
midst of the organizing campaign that the Union would be a matter of comment. Ac-
cording to Sam, Macias asked him what he thought about the Union and Sain
answered that he opposed it . On another occasion when the subject again arose,
Sain suggested that she talk to Myers; that Myers might be able to enlighten her.
Sain and Macias then went to Myers' office where Macias asked Myers what he
thought about the Union. Myers told her, as Sain recalled it, that he did not see how
the Union could help the employees or the Company. Sain denied that he threatened
Macias in any respect concerning her union advocacy and said that he had never
heard Myers do so.
Myers testified that he was "shocked and surprised" at Macias ' testimony and
said that he had always considered their relationship to have been a friendly one.
One day Sain told him, Myers testified, that Macias was unhappy, favored the Union,
and wanted to talk to Myers about it. Macias was then brought in. She told
Myers that there had been much talk about the Union and that she and others
thought that it would be good for them. Myers answered that she knew how he felt
about it, that she was doing a good job, was being trained to work in the laboratory
where she would not have to work with her hands all her life, and that he felt a union
would not do her any good. Myers assured her that whatever her decision her job
would not be affected. According to Myers there was no more to the conversation
He denied that he suggested the possibility of finding an excuse to discharge her
. Lewis Brewster, the father of Robert and Richard, testified that on August 22, 2
days before the election, Myers told him that he wanted him to attend an employee
meeting the following day and to "get up and state that you are going to vote against
the [Union]." Brewster did not immediately reply, whereupon Myers queried,
"You are, aren't you?" Brewster said that he had not yet decided and Myers com-
mented that it was about time he had.
Myers recalled the incident somewhat differently. Seeing Brewster that morning,
Myers testified, he asked him if he had been invited to attend a sales meeting
When Brewster indicated that he was not aware that one was to be held, Myers told
him that Broiles was to hold two of them and that he, Myers, would like to have
Brewster attend. Brewster somewhat grumpily replied that he did not know whether
he would go, whereupon Myers commented, "Well, you better make up your mind."
According to Myers there was no more to the conversation
Lewis, Robert, and Richard Brewster have been Respondent's employees for a
substantial number of years. There is no evidence that any one of them was a
member of the Union or even a union supporter in the election campaign. There
was nothing in the demeanor of any of them, as they testified, to indicate any feeling
of hostility toward the Respondent. Lewis Brewster had been given a leave of
absence by the Respondent while he recovered from an illness and may well have felt
grateful that a job was held open for him. I am convinced that no one of the three
in any degree exaggerated his testimony or testified to more than honest recollection
permitted. I credit the testimony of the Brewsters and thus do not accept as credible
the denials of Myers and Sain in respect to the remarks attributed to the last two
in the Brewsters' testimony
Purvis lost his job as a routeman when his driver' s license was suspended or
revoked. Myers provided him with other work in the plant which did not pay as
much as he had previously earned. I saw nothing in Purvis' demeanor and I find
nothing in the circumstances surrounding his discharge and rehire to suggest that
he harbors any resentment against his employer. There is no evidence that Purvis
was a union member or supporter and there is no rational reason suggested by the
record to suspect that he falsified in respect to any of his testimony. I credit him.
To the extent that the testimony of Myers and Sain is inconsistent with this resolu-
tion I do not credit them
As I have noted it seems probable to me that Macias thinks that she was mis-
treated by the Respondent. After 9 years of employment during which she had
acquired some skill in laboratory techniques, she found it necessary to quit because
of what seemed to her an inconsiderate shift change. Because of this circumstance
I have examined her testimony with care and emerge with the conclusion that she
was a truthful and accurate witness As she is no longer an employee her interest
in the outcome of this litigation is remote . True, she had expressed herself as one
who favored the Union but this was in connection with some working conditions
at the Respondent's plant and such conditions are no longer of interest to her. I
credit her and thus disbelieve the versions given by Sain and Myers concerning their
conversations with her about the Union.
Myers denied that he told Supervisor Charles Lee anything about being "rough
and tough" on the routemen . Lee did not testify. I find no reason to discredit
THE BORDEN COMPANY 1623
Anchondo in the matter . Myers may have said nothing of the sort but Lee said
that he did and was not called to the stand to deny that he had done so. I find that
Lee told Anchondo that in effect the route supervisors were told to be "rough and
tough" on the routemen , thus to discourage resort to the Union.
Routemen are paid 13 percent of what they collect and this appears to'constitute
their entire earnings . Beginning August 1 , the Respondent raised this percentage
to 14 for all collections made between the first and sixth of the month . This increase
is alleged in the complaint to have been granted in order to induce the routemen
to drop their interest in the Union . Myers testified that the change was made on
a temporary basis ( it was still in effect at the time of the hearing ) in order to improve
collections . Obviously it would tend to have that effect. Considering that the
routemen constitute only about a sixth of the number in the voting unit , there is no
reason to believe that union 'sentiment was stronger among them than in any other
employee grouping , and that the increase has a reasonable relation to a sensible
business purpose, I am not persuaded that the complaint has been sustained in this
particular and will recommend that in this respect it be dismissed.
Upon the basis of the conclusions leached above, I find that the Respondent by
telling Anchondo that the route supervisors were instructed to get "rough and tough"
with the routemen to discourage resort to the Union; by instructing Lewis Brewster
to say that he opposed the Union; by asking Richard Brewster how many of the
employees favored the Union , whether he had attended union meetings , and how
he would vote in the election; by asking Robert Brewster if he had attended a union
meeting and how he felt about the Union; by asking Larry Purvis how he would
vote in the election and whether he was with the Respondent or against it; and by
asking Alisa Macias how she felt about the Union, by telling her that the Union
would not permit her to work in the laboratory, and by suggesting that an excuse
might be found to fire her and that her future in the laboratory might be in hazard
because of her union sympathies, the Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of the
Act and has thereby violated Section 8 (a) (1) of the Act.
These findings accentuate what is freely admitted-that the Respondent vigorously
opposed the Union's campaign and strongly desired that the employees reject it.
Now, to the discharge of Anchondo:
It may be recalled that on May 19, in his hurry to end his day's work and to get
to the hearing on the Union 's petition for an election, Anchondo had failed to make
the extensions in his account book so as immediately to reflect the indebtedness of
his customers . He had thus not followed one of the instructions applicable to route-
men Anchonda testified that he knew of the rule but explained that he thought it
not to be of great importance for it was his belief that the Respondent took totals
from the route books only twice a month . Other drivers , as a matter of convenience,
according to Anchondo, made such extensions some days after actual delivery.
Larry Purvis, a routeman whose testimony in respect to other matters is referred to
earlier in this report, testified that he always kept his accounts up to date but that
no one in authority with the Respondent placed emphasis upon such a requirement
until all routemen at a meeting in July or August 1961 were told that such postings
must be made daily. It does not appear that Anchondo had ever in the past been
taxed with such a disregard of the rule and one wonders why in his letter on the
subject to Anchondo on May 23, Myers thought it appropriate to say, "In the future,
failure to comply with rules and regulations will be grounds for dismissal."
Lloyd Tyree, Respondent 's office manager, testified that in preparation for an
impending "no accident" campaign he reviewed his files to learn if he had a record
from the Texas Department of Public Safety covering the traffic violation records
of all drivers. He discovered that he did have for all 50 (most of the drivers were
not retail routemen ) with the single exception of Anchondo . Asking an immediate
reply, Tyree wrote to the Texas agency for Anchondo's record. The letter was
received in Austin on May 25 and Anchondo's record was forwarded to the Respond-
ent in due course . It shows that in the past 9 years Anchondo had 15 moving
violations and 1 accident. The accident occurred in 1957. Two of the moving
violations (running a red light and speeding ) took place in early 1961 when he was
in Respondent 's employ. None of the violations involved a Borden vehicle. On
June 2, Sam delivered the letter of discharge over the signature of Myers as set forth
earlier in this report.
Also on June 2 another driver, Jerry Pipkin , was discharged , assertedly for the
same reason . Pipkin began his employment with the Respondent in March 1961.
Tyree testified that upon Pipkin 's employment , an inquiry was made of the Texas
Department of Public Safety concerning traffic violations as a matter of routine.
Presumably that record was given to the Respondent long before June 2. A record
of Pipkin 's violation was introduced in evidence . It is not on the form used by
1624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Texas department and bears the signature of General Manager Myers. It may
be recalled that when Tyree wrote for Anchondo's record, a report was in the file on
all other drivers. At the time of Anchondo' s hire , Tyree testified, he exhibited his
driver's license and Tyree noted its number so that he might make inquiry concern-
ing violations . A month later, Anchondo testified , his route supervisor, Charles
Lee, asked for the number and Anchondo supplied it. Unquestionably the
Respondent was in possession of Anchondo's driver's license number many months
before he was discharged. Although inquiries of the Texas department in this con-
nection are made routinely at the time of hire, Tyree explained that in the case of
Anchondo he "goofed"; that no inquiry was made.
The coincidence of the discharge of Pipkin on the same day that Anchondo was
fired for the same asserted reason raises some questions Although at one point
Tyree testified that the violation record of Anchondo alone was missing from
Respondent's files in late May, at another point he testified that the record of Pipkin
was received from Austin at about the same time as that of Anchondo. The letter
of discharge given to Pipkin was signed by Walter Nowlin, Respondent's ice cream
sales manager , and refers to a traffic violation report received from the Texas
Department of Public Safety. However, the report received in evidence as provid-
ing the basis for Pipkin's discharge is not on the form used by the Texas depart-
ment and appears to be a compilation of information perhaps supplied by the Texas
department but on a form apparently designed for use by the Respondent. Thus
the question obtrudes. Was Pipkin's traffic violation record in Respondent's posses-
sion at the time when inquiry was made about Anchondo? Tyree's early testimony
is to that effect Or was the inquiry concerning Pipkin made at about the same
time as the one concerning Anchondo and the replies received at about the same
time? Finally, was the violation record of Pipkin in Respondent' s possession for
some appreciable time before June 2 and was the discharge of Pipkin dictated by
a scheme to make it appear that no unlawful consideration attended the discharge
of Anchondo; to show that the Respondent treated all drivers with unsatisfactory
records with an even hand? The answers to these questions must derive from the
record spread before me. I find that, as Tyree testified, inquiry of the Texas depart-
ment concerning Pipkin was made about the time of his hire in mid-March
Because the report on Anchondo was received about a week after it was requested
it is reasonable to assume, and I therefore find, that the report on Pipkin was received
within a week or two after it was requested and thus was in Respondent's hand by
about April 1. I do not credit Tyree's testimony that the Pipkin report was received
in late May or early June; first, because Tyree at one point testified that only as to
Anchondo was a report missing in late May and, second, because the original report
on Pipkin which might have disclosed the date of receipt was not produced.
Although it is by no means impossible that the Respondent failed to request and
to receive a traffic violation report on Anchondo at the time of his hire in June 1960,
it is unlikely that this is true. Such requests were routinely made and the Respond-
ent took the number of Anchondo's driver's license so that it might gain this informa-
tion. The probability that someone "goofed" only in respect to Anchondo is a
slight one. Safety campaigns were not novel in Respondent's operation If it was
routine for Tyree to check the files on all drivers before the opening of the June
campaign, one may assume that the same routine was followed the previous August
when, as Sales Manager Broiles testified, all drivers were alerted, following an
annual custom, to the reopening of schools in connection with a program to pro-
mote the safety of children. Respondent's explanation of the matter is supported
only by the testimony of Tyree and I cannot accept his version uncritically. I do
not believe that he testified truthfully in respect to Pipkin and I do not accept his
assertion that in late May he discovered the absence of a report on Anchondo The
discharge of Anchondo was decided upon by General Manager Myers. As his
subordinate, Tyree would have strong reason to testify in Myers' support. I have
found Myers not to be a trustworthy witness in other aspects of this case In yet
another matter he has demonstrated a capacity to testify recklessly or falsely in
the interest of the Respondent In December 1960, a driver, Lonnie McNutt.
negligently collided with another vehicle demolishing the Borden truck that he was
driving. McNutt was not discharged or, it appears, otherwise disciplined for his
carelessness . Myers in his testimony explained that until the December accident
McNutt had a "perfect driving record." Sales Manager S. W. Broiles testified that
prior to the accident, McNutt had a "clear" record as revealed by a report from the
Texas Department of Public Safety. However, A. M. Averill, chief clerk, Traffic
Violations Bureau, for the city of El Paso, testified that from December 1951 through
June 1959, McNutt had been fined on five occasions for speeding and that the records
of such offenses are routinely forwarded to the Texas department in Austin. When
questioned about this, Myers said that the record he had received from Austin con-
THE BORDEN COMPANY 1625
tamed no such information and that had he been aware that such a question would
arise he would have brought the Austin record on McNutt to the hearing. The
record was not produced. Considering the strong probability that the Austin record
on McNutt would have revealed the same list of charged violations that existed in
the El Paso Traffic Violations Bureau, considering the failure of the Respondent to
show that in fact the record supplied to it by the Texas department indicated "a
perfect driving record," I find that Myers and Broiles either deliberately misrepre-
sented the information in Respondent's files concerning McNutt's driving record or
recklessly asserted that it was "perfect" or "clear." The obvious purpose of this
misleading and inaccurate testimony was to lessen the force of a possible contention
that McNutt was treated more considerately than Anchondo. The result of it is to
reinforce my conviction that Broiles and particularly Myers are not witnesses upon
whose testimony much reliance can be placed.
On May 19 Anchondo was revealed as a supporter of the Union. If the Respond-
ent was unsure of where Anchondo stood before that date, his testimony as a union
witness at the representation hearing removed all doubt. On May 23, in a formal
communication from Myers, Anchondo learned that his route book had been checked
on May 19; that his failure to extend balances had been noted; and that a subsequent
failure to follow Respondent's rules and regulations would be "grounds for dis-
missal " Anchondo had never been found delinquent in this or, so far as appears,
in any other respect in the past. Crediting Anchondo and Purvis in this connection,
I find that the routemen did not regard an occasional failure to extend balances a
serious matter or one that might occasion a warning of possible discharge. About
the same time that the warning letter was given to Anchondo, the Respondent sent
its inquiry to Austin to learn of Anchondo's traffic violation record. I do not credit
the testimony of Tyree that there was no such report on Anchondo in the Respond-
ent's files or that the inquiry was occasioned by the upcoming safety campaign. The
probabilities of the situation are such as to convince me that Anchondo's traffic
violation record had been obtained shortly after his hire and that the inquiry in late
May was made to learn of any recent traffic violations. I find that the inquiry was
made because of a desire on the part of the Respondent to uncover some dereliction
on the part of Anchondo that would justify his discharge. The desire was engen-
dered by Anchondo's appearance as a witness for the Union (and thus as a union
supporter) at the representation hearing.
Thus, at the time that the inquiry to Austin was placed in the mail, the Respond-
ent knew that Anchondo over a period of years had a traffic record involving 13
violations and I accident. But this was stale information and the Respondent
obviously had been wliling to continue him in its employ in the fact of it. The
later report showed additional violations in January and February.
That the Respondent has a moral duty and responsibility not to entrust its vehicles
to, or subject the public to the hazards of, irresponsible or incompetent drivers
hardly needs discussion. In November 1960 at a time when the atmosphere was
unclouded by the stresses and strains of an organizing campaign, a driver, Hector
Moriel, was discharged because his traffic record disclosed six accidents and two
additional violations over a span of less than 5 years. This circumstance lends
support to the Respondent's contention that Anchondo's discharge was decided
upon and effected because of what his record revealed There is a distinction
between the two cases, of course. Anchondo had a large number of violations but
only one accident. Moriel had been involved in frequent accidents. Whether this
distinction was a meaningful one in the mind of Myers I do not know. Anchondo's
violations in January (running a red light) and in February (speeding) may have
been flagrant or little more than technical. In the letter of discharge to Moriel,
Myers wrote, "We are unable to find any extenuating circumstances in your case."
The letter to Anchondo does not include a suggestion that "extenuating circum-
stances" could have any bearing on Myers' decision. Whatever the circumstances
surrounding Anchondo's recent violations may have been, he was not questioned
about them.
So the question boils down to a not unfamiliar nub. Having valid cause to dis-
charge Anchondo, did the Respondent act upon it or upon other and discriminatory
considerations. I am convinced that the discharge was discriminatory. The
Respondent became aware shortly after his hire that Anchondo had a number of
traffic violations against his record. It was, of course, not required to mention the
matter to Anchondo or to warn him that further violations would endanger his
tenure, but in the nature of things this would have been a reasonable, sensible, and
likely development. Aware of the number of violations, had the Respondent been
disturbed about it, one might expect it to keep Anchondo's record reasonably cur-
rent; to make periodic inquiry of the department of public safety to learn if further
violations were accumulating against his record. In late May, it did so; not because
1626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Anchondo's past record gave the Respondent concern but in an effort to find an
unassailable reason for discharge . Supported in its action by information of two
additional violations and seeking to make a showing of nondiscriminatory motiva-
tion by discharging Pipkin upon the basis of a report already in its hands for 2
months, Anchondo was discharged.
I find that the Respondent discharged Anchondo because of his membership in
and activity in behalf of the Union . The Respondent thereby discouraged member-
ship in the Union and thus violated Section 8(a)(3) of the Act. By the discharge
the Respondent interfered with, restrained , and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act and thereby violated Section 8(a)(1) of
the Act.
It is also alleged that the discharge was motivated by the fact that Anchondo testi-
fied in a representation hearing and that Section 8 (a)(4) was thus violated. It
will be recalled that shortly after the date on which he testified , Anchondo was given
a warning letter and that 2 weeks after the earlier date he was discharged . Although
I am convinced that Anchondo's exposure as a union adherent at that hearing led
to the warning and to his discharge , I do not find that a violation of 8(a)(4) is
spelled out. The discharge was made not because Anchondo testified but because
in doing so he identified himself as a union supporter . There is no evidence that
his testimony was displeasing to the Respondent or that it was in any sense against
Respondent 's interest.
THE OBJECTIONS TO THE ELECTION
On November 13, 1961 , by appropriate order, the Board directed that evidence
be taken in this proceeding relating to certain objections filed by the Union to con-
duct of the Respondent which , allegedly, vitiated the election held on August 24.
In this connection the Union asserted:
1. The Employer posted a sample of the official Secret Ballot of the National
Labor Relations Board which was marked with an " X" in the "NO" block and
circled in red.
3. The Employer conducted a mandatory meeting, within the twenty-four
hour period immediately preceding the election, at which election propaganda
was disseminated and the employees were advised of a unilateral wage increase
7. The Employer , immediately prior to election conducted a campaign of
individual interrogation in a locus of managerial authority which invaded the
rights of the employees to freely engage in union activities and were reasonably
calculated to improperly influence the employees with respect to their voting
rights.
Concerning objection No. 1: Larry Purvis testified that for a period of about a
week before the election one of the notices of the election posted in Respondent's
plant was marked with an "X" in the "NO" box.
Leopoldo Rivera, who in August was an employee in the milk department , testi-
fied that he saw about six ballot forms posted at various points in the plant and that
three of them were marked " X" in the "NO" box. One of these so marked was a
complete notice of election
Lionel Martinez , an employee in the same department , testified that he saw about
four sample ballots posted and that three were marked with an "x" in the "NO"
box. One of the three was behind the locked glass doors covering the Respondent's
bulletin board. According to Martinez these marked ballots remained posted for
a period of about 3 days just prior to the election . Martinez , who was the Union's
observer in the election , reported this circumstance to Roger Wallace, the Union's
organizer . Wallace told him, Martinez testified, to do nothing about it. Martinez
did not mention the matter to any representative of the Respondent.
E. L. Schmidt , who has long worked for the Respondent and is described as a
"fieldman" with a variety of duties , testified that he posted the election notices in the
plant, that three of them were posted behind locked glass doors on three bulletin
boards, that only he had keys to the bulletin boards , that the posting was made about
a week before the election, that he removed the notices on the day following that
event , and that there were no markings on any of the sample ballots at any time.
Martinez alone testified that he saw a marked ballot behind the locked doors of a
bulletin board . No doubt Martinez is a union adherent as his appointment as
observer for the Union indicates. Schmidt opposed the Union. The testimony of
both must be examined with these factors in mind . I have no doubt but that
Martinez saw what he said that he saw. Schmidt may simply have failed to observe
THE BORDEN COMPANY 1627
the markings , although this seems unlikely. My general impression of Schmidt,
gained from my observation of his demeanor on the stand , is that he was careful
to avoid saying anything which might be damaging to the Respondent and that this
disinclination caused him to be less than truthful in respect to the marked sample
ballots as in other matters yet to be discussed . I find , crediting Purvis, Rivera, and
Martinez , that for several days before the election some of the sample ballots posted
in the plant were marked with and "X" in the "NO" box.
As the marked samples appeared to be supplied by the Board and bore the name
of the Board , the possibility exists that those employees who saw them could con-
clude that the Board desired employees to vote "NO" in the election . In Allied
Electric Products , Inc., 109 NLRB 1270 , the Board said where employees were led
to believe in such fashion that the Board favored one choice over another , it would
set aside the results of any election in which the successful party has violated this
rule." In the case giving rise to that decision it was clear that the petitioning union
had altered copies of the Board 's official ballot and circulated them. Having won
the election , the union in that case was the "successful party." Here, it seems
accurate to say, Borden was the "successful party" for the Union lost the election.
But evidence to support a conclusion that Borden was responsible for the marking
of the ballots is meager. Only the fact that one of the marked ballots was posted
behind locked glass doors permits an inference that Borden was responsible for the
marking. Although I do not believe that Schmidt-the one in possession of the
bulletin board keys and the one who did the posting-was a reliable witness , in this
matter I credit him and find that he did not mark any of the ballots.
But the markings were there for the employees to see and whatever influence this
circumstance may have had in the voting on August 24 would not depend upon
who was responsible for the markings . Roger Wallace, the organizer for the Union,
knew of the situation , for Martinez told him of it. Wallace took no action even
though if the markings were effective at all, the union cause would be the one to
suffer. He may have thought the whole thing unimportant or, more likely, that
it provided a sort of insurance-if the Union lost the election the marked postings
would constitute grounds for setting it aside. The Respondent knew of the mark-
ings. Schmidt watched the bulletin boards and could hardly have failed to notice
the presence of the "X" in the "NO" box. It is not rationally conceivable that the
condition of the sample ballots over a period of several days could have escaped the
notice of the Respondent . On the basis of these factors I find that both the Union
and the Respondent knew for some time before the election that the sample ballots
were marked . In the Allied decision cited above, the Board speaks in terms of rule
violation and the consequences if "the successful party has violated this rule." But
the Board 's concern , as a full reading of that decision makes plain , was not to seek
out some violator and visit a punishment upon him even if the Act might permit
such a course ; and it does not. It was , clearly, to permit employees to make a choice
in respect to a bargaining representative free from suggestion , direct or otherwise,
that the Board favored any particular choice. So , it would seem, the identity of
the culprit is of no importance . If the forbidden propaganda is publicly brought
to the employees' attention and if the result of the election is the result thus sought,
the election must be set aside. Not because any of the contending participants have
violated a rule but because there is reasonable ground for a belief that the voters
have been or may have been effectively influenced by a suggestion that the Board
favored the choice they expressed at the polls.
Upon these considerations I will recommend that the result of the election of
August 24, 1961 , be set aside.
As to objection No. 3: On August 23, less than 24 hours before the election was
held, the employees in the milk department were required to attend a meeting on
Respondent 's premises . Similar meetings of employees in other departments had
been held on the preceding day. The August 23 meeting was opened by Robert
Stephens , superintendent of the milk department , who told the employees that he
hoped all would vote in the election . E. L. Schmidt then spoke on safety matters.
Concluding with this, Schmidt said that a union was unnecessary and, according to
employees Rivera and Martinez , that a wage rise would be forthcoming that fall.
Burl Bloxom , a warehouse employee, said that his experiences with unions had been
unhappy and recommended an adverse vote. Stephens testified that he had not
expected Schmidt to speak about the election and, that , in any event, anything that
Schmidt and Bloxom said took place after the meeting was formally closed and
while the employees were preparing to return to their work stations . On August
22 and 23, four such meetings were held. Schmidt attended all of them but, he
testified , did not mention his opposition to the Union at each meeting. Bloxom too
went to all the meetings at the direction of the Respondent and, at the close of each,
expressed his opposition to the Union . Bloxom explained that his attendance was
1628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
required so that he might unlock -a soft drink machine and distribute soft drinks to
the employees in attendance.
Considering the direction of General Manager Myers to Lewis Brewster on
August 22 that he attend such a meeting and there tell the other employees that he
was against the Union, I find that the Respondent used the occasion of the safety
meeting on August 23 to permit known opponents of the Union to urge other em-
ployees to vote against the Union. It seems to be true that neither Schmidt nor
Bloxom is a supervisor but both, and particularly Schmidt, were provided with a
forum and an audience by the Respondent. Employees were required to attend and
to listen. I credit Rivera and Martinez in their testimony that Schmidt said that
raises would be forthcoming and disbelieve Schmidt's denial in the matter It is
more than happenstance that Bloxom attended each meeting and expressed his
opinion about the Union at each. I do not doubt but that the Respondent's super-
intendents and supervisors were well aware of Bloxom's feelings about the election
and that his attendance was permitted and required in the expectation that he would
speak against the Union I will recommend that objection No. 3 be sustained
As to objection No. 7• Elsewhere in this report I have found as instances of un-
lawful interference the questioning of Richard Brewster by Sain concerning how
Brewster would vote in the election; the questioning of Purvis by Russ to the same
effect; and the direction to Lewis Brewster by Myers to state opposition to the Union
at an employee meeting on August 22 or 23. These findings sustain objection No 7
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The operations of the Respondent described in section 1, above, in connection
with the unfair labor practices described in section III, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce
V. THE REMEDY
Having found that the Respondent has violated the Act, it will be recommended
that it cease the desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent has discriminatorily discharged Ceferino An-
chondo, it will be recommended that it offer to him full and immediate reinstate-
ment to his former or substantially equivalent position and that he be made whole
for any resultant loss of pay from the date of his discharge to the date he is offered
reinstatement less his net earnings during that period I
Having found that the election of August 24, 1961, was conducted in circum-
stances not permitting a free choice of the employees, it will be recommended that
the result of the election be set aside
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following -
CONCLUSIONS OF LAW
1 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Truck Drivers, Chauffeurs, Warehousemen & Helpers, Local 941,
is a labor organization within the meaning of Section 2(5) of the Act
2. By discharging Ceferino Anchondo on June 2. the Respondent has discouraged
membership in a labor organization and has thereby engaged in unfair labor prac-
tices within the meaning of Section 8(a) (3) of the Act
3. By the discharge, by questioning employees concerning their interest in the
Union and their voting intentions in the representation election, by suggesting to
Alisa Macias that her desire for a union might cause the Respondent to find a pre-
text for her discharge and might lessen her chances for advancement, and by direct-
ing Lewis Brewster to speak against the Union at a meeting of employees, the Re-
spondent has interfered with, restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor
practices within the meaning of Section 8(a) (1) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the case, I recommend that the Respondent, The Borden
Company, El Paso, Texas, its officers, agents, successors, and assigns, shall:
' Backpay shall be computed on a quarterly basis In the manner established in F, W
Woolworth Company, 90 NLRB 289.
THE BORDEN COMPANY 1629
1. Cease and desist from:
(a) Discouraging membership in International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Truck Drivers, Chauffeurs, Ware-
housemen & Helpers, Local 941, or in any other labor organization of its employees,
by discriminatorily discharging any of its employees or by discriminating in any other
manner in regard to hire or tenure of employment or any term or condition of
employment.
(b) Interrogating employees concerning their interest in the Union or their voting
intentions or suggesting that a union adherent may be discharged upon a pretext
or that such a person 's future with the Respondent might be jeopardized, or by direct-
ing any employee to speak against the Union at one employee meeting , or in any
other manner interfering with, restraining, or coercing employees in the exercise of
the right to self-organization, to form labor organizations, to join or assist the above-
named Union or any other labor organization, to engage in other concerted activities
for purposes of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act
(a) Offer to Ceferino Anchondo immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his senority or other rights
and privileges, and make him whole for any loss of pay he may have suffered by
reason of the discrimination against him in the manner set forth in the section of
this report entitled "The Remedy "
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary or useful to
an analysis of backpay due under the terms of this Recommended Order
(c) Post at its plant in El Paso, Texas, copies of the notice attached hereto marked
"Appendix." 2 Copies of said notice, to be furnished by the Regional Director for
the Twenty-eighth Region, shall, after being duly signed by a representative of the
Respondent, be posted by it immediately upon receipt thereof, and be maintained
by it for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Twenty-eighth Region, in writing, within
20 days from the date of this Recommended Order, what steps have been taken in
compliance.3
It is recommended that unless on or before 20 days from the date of receipt of
this Intermediate Report and Recommended Order the Respondent notifies said
Regional Director that it will comply with the foregoing Recommended Order, the
National Labor Relations Board issue an order requiring the Respondent to take
the action aforesaid.
It is finally recommended that the result of the election conducted among Re-
spondent 's employees on August 24, 1961, be set aside.
2In the event that this Recommended Order shall be adopted by the Board, the words
"A Decision and Order" shall be substituted for the words "The Recommended Order of
a Trial Examiner" in the notice In the further event that the Board's Order be en-
forced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree
of the United States Court of Appeals, Enforcing an Order" shall be substituted for the
words "Pursuant to a Decision and Order "
IIn the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Board, and in order to effectuate the policies of the National Labor Relations Act,
as amended , we hereby notify you that:
WE WILL NOT interrogate employees concerning their interest in a union or
their voting intentions in a representation election or direct any of them to speak
against a union at an employee meeting or suggest that a union adherent may
be discharged for pretextuous reasons or that such an employee's future is made
less promising because of his interest in a union, or in any other manner inter-
1630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fere with , restrain , or coerce our employees in the exercise of their right to self-
organization , to join or assist International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America , Truck Drivers, Chauffeurs,
Warehousemen & Helpers, Local 941 , or any other labor organization , to bargain
collectively through representatives of their own choosing , and to engage in
concerted activities for the purposes of collective bargaining or other mutual
aid or protection , or to refrain from any or all such activities.
WE WILL offer to Ceferino Anchondo immediate and full reinstatement to his
former or substantially equivalent position , without prejudice to his seniority or
other rights and privileges , and make him whole for any loss of pay he may
have suffered by reason of his discriminatory discharge.
All our employees are free to become or remain , or refrain from becoming or
remaining , members of the above -named Union or any other labor organization.
We will not discriminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership in or activity
in behalf of any labor organization.
THE BORDEN COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced, or covered by any other material.
Employees may communicate directly with the Board's Resident Office, 206 San
Francisco Street , El Paso, Texas, Telephone Number , Keystone 3-9351 , Extension
213, if they have any question concerning this notice or compliance with its provisions.
Edwin E. Swalley d/b/a Swalley Printing Company and James
Allen Bethune . Case No. 10-CA.-4837. Jvly 25, 1962
DECISION AND ORDER
On April 26, 1962, Lee J. Best issued his Intermediate Report in
the above-entitled proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor practices and
recommending that he cease and desist therefrom and take certain
affirmative action, as set forth in the attached Intermediate Report.
Thereafter, the Respondent filed exceptions to the Intermediate Report
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
'The Board adopts the Recommended Order of the Trial Examiner.
137 NLRB No. 178.